Hon. Catherine Moore Oral Argument: May 26, 2017 NO. 16-2-299130 SEA IN SUPERIOR COURT OF THE STATE OF WAI-DNGTON IN AND FOR THE COUNTY OF KLNG JASON C. CANFIELD, an individual, Plaintiff . Petitioner, V. CITY OF SEATTLE, Defendant 7 Respondent, REPLY BRIEF Jason Canfield REPLY STATEMENT OF THE CASE Petitioner Jason Canfield contends that the signs placed in the school zone in question did not COmply with the specifications and guidelines of the Manual on Uniform Traffic Control Devices (MUTCD), as required by RCW 416.63.170 Canfield did not provide testimony of any kind at the contested hearing. There exists only a prirna facie presumption that Canfield was operating his vehicle at the time that the infraction is said to have been committed. The sign referred to by the City and the municipal court as a ?warning sign,? does not adhere to- the design requirements of a Warning Sign as provided in the MUTCD. The City?s sign, as described by the court as, ?some. sort of hybrid sign? created by the City, ?similar in size, to the beacon size, similar in coloration and design 1? most closely resembles the school speed limit assembly, which is a regulatory sign. MUTCD 2C.03 covers the design of warning signs, in particular paragraphs (01) and (06).2 1 RP 111 (November 29, 2016 Report of Proceedings) at 29 2 Section 2C.03 Design of Warning Signs Standard: . - 01 Except as provided in Paragraph 2 or unless specifically designated otherwise, all warning signs shall be diamond?shaped (square with one diagonal vertical) with a black legend and border on a yellow background. Warning signs shall be designed in accordance with the sizes, shapes, colors, and legends contained in the ?Standard Highway Signs and Markings? book (see Section 1A.11). Standard: II. REPLY ARGUMENT First, the City contends that the word can be used to refer to either singular or plural in the MUTCD. This is not supported by the City?s citations, as the specifications and guidelines in the MUTCD are not statutes or codes,land were not authored by legislature. In this case, the standard definition of applies. - Second, the City states that both plaques, WHEN CHILDREN ARE PRESENT, and OR WHEN FLASHING are necessary, because the speed limit applies when either children are present or the lights are ?ashing. The City?s desire to use multiple plaques does not create a necessity to rViolate the mandatory standard statements in the MUTCD. Canfield asserts, by belief and information, that countless other jurisdiCtions are able to enforce reduced speed limits in school zones without resorting to deviating from the Standards of the MUTCD. Next, the City reasserts, almost verbatim, their argument for substantial compliance as originally argued in brief in Hunt V. City of Sea?ttle3. In the ruling, Judge Heller specifically held that the City?s argument 'was unpersuaSive, and substantial compliance was ruled insufficient when it comes to the specifications in the MUTCD. 06 Warning signs regarding conditions associated with school buses and schools and their related supplemental plaques shall have a black legend and border on a ?uorescent yellow? green background (see Section 7B.07). The City?s citation from the Introduction section of the MUTCD does not support their argument that substantial compliance with MUTCD standards is sufficient. The cited section merely creates a minimum requirement for traffic control devices in every state, whether or not they have adopted the MUTCD, to substantially conform to the Standards issued or endorsed by the FHWA. The MUTCD states that once a State adopts the MUTCD (as Washington has), traffic control devices installed shall be in compliance with the MUTCD4. The City contends that the MUTCD ?appears to endorse the substantial compliance doctrine followed in Washington.? Appearances aside, the MUTCD clearly states What is intended by, ?substantial conformance? in paragraph 19 of the introduction: ?In accordance with 23 CFR States or other Federal agencies that have their own MUTCDs or Supplements shall revise these MUTCDS or Supplements to be in substantial conformance with changes to the National MUTCD within 2 years of the effective date of the Final Rule for the changes. Substantial conformance of such State or other Federal agency MUTCDs or Supplements shall be as defined in 23 CFR 655.603(b) (Emphasis added) 23 CFR 655 .603(b)(1) defines substantial conformance as follows: ?Substantial conformance means that the State MUTCD or supplement shall conform as a minimum to the standard statements included in the National (Emphasis added) 3 Hunt, (13?2-25366-6) RALJ Brief of Respondent, p. 4-5 4 MUTCD Introduction, Page 3, Paragraph 20 This strict requirement to follow the standard statements in the MUTCD is reinforced throughout the MUTCD, in particular in section 1A.13 under the definition of ?Standard,? which states in part: ?Standard? a statement of required, mandatory, or specifically prohibitive practice regarding a traffic control device Standard statements shall not be modified or compromised based on engineering judgment or engineering study.? To the extent that the City contends that their deviation from the Standards in the MUTCD is ?merely a technical error,? this is inaccurate. The addition of the word, and the subsequent addition of a second plaque containing 4 extra words, directly relates to the legibility of the sign, and the ability of drivers to perceive, react, and adjust their speed prior to entering the school speed limit zone. MUTCD section 2A.06 (04) states that desirable attributes of a sign include ?a short legend for quick comprehension.? After m, Federal Highway Administration spokesperson Neil Gaffney was quoted in the Seattle Times,5 in reference to the case, stating, ?Shorter language is easier to comprehend.? The City has not attempted to prove, through engineering study or otherwise, that their deviation from the Standard does not impact a driver?s perception and reaction time, and their ability to reduce speed in time. 5 Regarding collateral estOppel, the City is incorrect that the issue in question is different from the issue in m. The issue in both cases is Whether or not substantial compliance with the specifications in the MUTCD is sufficient to meet the requirements of RCW 46.63.170 The difference in wording on the school speed limit signs is inconsequential to this issue. Regarding the fourth element of collateral estoppel, in Vasquez, Vasquez was attempting to preclude an issue from an administrative hearing in a subsequent criminal trial. The findings do not support the City?s claim that an injustice is worked on the City by precluding relitigation of the issue simply due to the fact that the prior adjudication was a civil proceeding involving the government. - The City next cites United States V. Mendoza, claiming that nonmutual collateral estoppel does not apply against ?the government.? The Government referred to in the cited case is the US. Government. It was held that the United States may not be nonmutually collaterally estopped on an issue such as the constitutional issue in Mendoza. At Page 464 US. 158, it is specifically stated, agree with the Government that Parklane Hosiery ?s approval of nonmutual offensive collateral estoppel is not to be extended to the United States.? That this appliesto local municipal governments is not made clear by the ruling in Mendoza. the conditions of collateral estoppel are not met in this case, the intent of collateral estoppel still applies. The doctrine of collateral estoppel is designed, in part, to prevent inconsistent judgments. The City fully and fairly, but unsuccessfully, litigated the issue of substantial compliance with the MUTCD in m. Judge Heller rejected the City?s argument, concluding that substantial compliance was insufficient. The City is now seeking a differing resolution of the same issue, using the same argument. The City next cites WAC 468-95-327, which modifies a standard statement the MUTCD, converting it to an ?option.? This WAC contradicts Title 23, Chapter 1, Subchapter G, Part 655.603 of the Code of Federal Regulations,6 which requires State MUTCDs toconform as a minimum to the standard statements included in the National MUTCD. The City next argues that because MUTCD section 7B.16 merely provides ?Guidance? that a Reduced School Speed Limit Ahead sign should be used, that its use is not required. This ignores the language in RCW 46.63.170 As in m, the City contends that the ruling in Ot_tis Holwegner v. Moser supports the claim that the use of ?should? in the MUTCD does not create a mandatory requirement. In M, it was correctly argued that: 5 Petitioner Exhibit 1 ?Holwegner is distinguishable because in that case, a statute allowed for state immunity for negligent action if tunnel clearance signs were posted ?in accordance with? the MUTCD. Holwegner, p. 119. However, the court noted that if the applicable statue had required the State to comply with the MUTCD or ?mandated compliance of at least consideration of all MUTCD provisions? then the State could lose its immunity by not installing signs that otherwise merely recommended by the MUTCD. Holwegner, p. 123. This analysis supports the holding in Potelco.? Hunt, Reply Brief of Appellant p. 6?7 RCW requires the State to comply with MUTCD guidelines, as WAC required compliance with MUTCD guidelines in Potel'co. The City next contends that they are not required to follow the ?Guidance? in MUTCD 2A.13 regarding the brevity of messages and size of lettering, as it is ?merely a ?Guidance.?? However, this again ignores the language in RCW making compliance-with MUTCD guidelines mandatory. The City claims that the message on the sign was as brief as possible ?under the circumstances.? However, these circumstances are manufactured, and involve the City?s claim that the use of two plaques to fully and accurately convey the meaning of the speed restriction is necessary, which Canfield rejects. The City next argues that Canfield used MUTCD Table 204 for a purpose which it was not intended. Table 2C-4 provides guidelines for placing warning signs in advance of conditions to provide drivers with adequate time to adjust their driving behavior as necessary. Footnote 4 regards the typical condition where a driver must reduce their speed to maneuver through the warned condition. Canfield derived the deceleration rate of 10 feet/second2 from this footnote, and the AASHTO PRT of 2.5 seconds is referenced here. Although there are no warning signs posted at the site in Question, the information provided by the table is relevant to Canfield?s argument. CONCLUSION For the foregoing reasons, Plaintiff Canfield asks that the Court reverse the judgement of the Municipal Court. Respectfully submitted this 8th day of May, 2017. Jason Canfield 7 WAC You must ?rst apply the requirements in this section. Then you must set up and use temporary traffic controls according to the guidelines and recommendations in Part VI of the MUTCD. (Emphasis added) a 8 EXHIBIT 1 ?655.603 Standards. National MUTCD. The MUTCD approved by the Federal Highway Administrator is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel in accordance with 23 U.S.C. 109(d) and 402(a). For the purpose of MUTCD applicability, open to public travel includes toll roads and roads within shopping centers, airports, sports arenas, and other similar business and/or recreation facilities that are privately owned but where the public is allowed to travel without access restrictions. Except for gated toll roads, roads within private gated properties where access is restricted at all times are. not included in this definition. Parking areas, driving aisles within parking areas, and private highway-rail grade crossings are also not included in this definition. State or other Federal MUTCD. (1) Where State or other Federal agency MUTCDs or supplements are required, they shall be in substantial conformance with the National MUTCD. Substantial conformance means that the State MUTCD or supplement shall conform as a minimum to the standard statements included in the National MUTCD. The FHWA Division Administrators and Associate Administrator for the Federal Lands Highway Program may grant exceptions in cases where a State MUTCD or supplement cannot conform to standard statements in the National MUTCD because of the requirements of a specific State law that was in effect prior to the effective date of this final rule, provided that the Division Administrator or Associate Administrator determines based on information available and documentation received from the State that the non-conformance does not create a safety concern. The guidance statements contained in the National MUTCD shall also be in the State Manual or supplement unless the reason for not including it is satisfactorily explained based on engineering judgment, specific conflicting State law, or a documented engineering study. The FHWA Division Administrators shall approve the State MUTCDs and supplements that are in substantial conformance with the National MUTCD. The FHWA?Associate Administrator of the Federal Lands Highway Program shall approve other Federal land management agencies MUTCDs and supplements that are in substantial conformance with the National MUTCD. The FHWA Division Administrators and the FHWA Associate Administrators for the Federal Lands Highway Program have the flexibility to determine on a case-by-case basis the degree of variation allowedf (2) States and other Federal agencies are encoUraged to adopt the National MUTCD in its entirety as their official Manual on Uniform Traffic Control Devices. (3) States and other Federal agencies shall adopt changes issued by the FHWA to the National MUTCD within two years from the effective date of the final rule. For those States that automatically adopt the MUTCD immediately upon the effective date of the latest edition or revision of the MUTCD, the FHWA Division Administrators have the flexibility to allow these States to installcertain devices from existing inventory or previously approved constructibn plans that comply with the previous MUTCD during the two- year adoption period. (0) Color specifications. Color determinations and specifications of sign and pavement marking materials shall conform to requirements of the FHWA Color Tolerance Charts.1 An alternate method of determining the color of retroreflective sign material is provided in the appendix. ?Available for inspection from the Office of Traffic Operations, Federal Highway Administration, 1200 New Jersey Avenue, SE., Washington, DC. Compliance?(1) Existing highways. Each State, in cooperation with its political subdivisions, and Federal-agency shall have a program as required by 23 U.S.C. 402(a). which shall include provisions . for the systematic upgrading of substandard traffic'control devices and for the installation of needed devices to achieve conformity with the MUTCD. The FHWA may establish target dates of achieving compliance with changes to specific devices in the MUTCD. (2) New or reconstructed highways. Federal-aid projects for the construction, reconstruction, resurfacing, restoration, or rehabilitation of streets and highways shall not be opened to the public for unrestricted use until all appropriate traffic control devices, either temporary or permanent, are installed and functioning properly. Both temporary and permanent devices shall conform to the MUTCD. (3) Construction area activities. All traffic control devices installed in construction areas using Federal-aid funds shall conform to the MUTCD. Traffic control plans for handling traffic and pedestrians in construction zones and for protection of workers shall conform to the requirements of 23 CFR part 630, subpart J, Traffic Safety in Highway and Street Work Zones. [48 FR 46776, Oct. 14, 1983, as amended at 51 FR 16834, May 7, 1986; 68 FR 14139, Mar. 24, 2003; 71 FR 75115, Dec. .14: 2006; 74 FR 28442, June 16, 2009; 74 FR 66861, Dec. 16, 2009] Source: